A Win for Online Privacy Rights at the Supreme Court: Douez v Facebook

From a Canadian Civil Liberties Association (CCLA) article: CCLA's voice was heard and recognized in the Supreme Court of Canada (SCC) decision released today, Douez v Facebook, Inc. The case addressed whether a Vancouver woman, Deborah Douez, should be able to pursue a claim against the social media giant under Canadian law, in Canada.

CCLA argued, and the Court agreed, that one reason we need to make sure that privacy and other rights are protected in these kinds of contracts is that social media use is becoming an essential part of participation in public life:

As the intervener the Canadian Civil Liberties Association emphasizes, "access to Facebook and social media platforms, including the online communities they make possible, has become increasingly important for the exercise of free speech, freedom of association and for full participation in democracy." (para 56)

Most of the important principles CCLA argued for found traction with the Court, which generally agreed that "take it or leave it" consumer contracts are different than other kinds of commercial contracts because they raise questions of meaningful consent, and that it is in the public interest to protect rights such as privacy when evaluating where disputes about this kind of contract should be heard.

Recent statistics reveal that in March 2017 there were more than 1.94 billion active users on Facebook, with five new users joining every second.[1] More than 18 million of these are Canadian, 1.8 million in BC alone.[2] CCLA believes that all of these people, who use Facebook as an important part of their social lives, and who share their photos, sexual preferences, location, religious affiliation, political views and all kinds of personal information, should have an option to bring forward a case in Canada, under Canadian law, if they experience privacy violations.

Ms. Douez tried to initiate legal actions in against Facebook in British Columbia, for using her name and picture in “sponsored stories” advertisements without express consent. Facebook argued that she could not bring forward her case in BC because when she created her account, she agreed to their terms of service. Those terms of service include a forum selection clause, specifying that users must resolve any claims against the company in a US court located in California.